Opinion
Civil Action No. 3:03-CV-0584-D.
October 15, 2004
MEMORANDUM OPINION AND ORDER
In this action that was removed to this court following extensive state court proceedings, including an interlocutory appeal, after plaintiff amended his petition to add a federal question claim, the court grants summary judgment dismissing the federal question cause of action and remands the balance of the case to state court.
I
Plaintiff-counterdefendant John Krawczyk ("Krawczyk"), a Senior Corporal in the Dallas Police Department, alleges that defendant-counterplaintiff City of Dallas ("City") is liable because Deputy Chief of Police John Martinez ("Chief Martinez") discriminated and retaliated against him by transferring him from the Internal Affairs Division ("Internal Affairs") to the Northwest Operations Division ("Northwest Division") after he learned that Krawczyk had complained to the Vice President of the Dallas Police Association ("DPA") about a change in work schedule. In 2000 DPA and Krawczyk sued the City in state court alleging violations of the Free Speech provision of the Texas Constitution, Tex. Const. Ann. art. I, § 8 (Vernon 1997), and Tex. Labor Code Ann. §§ 101.001, 101.003, and 101.301 (Vernon 1996). The City later counterclaimed against DPA and Krawczyk for a declaratory judgment that it is not subject to chapter 101 of the Texas Labor Code and that its provisions are preempted by chapter 617 of the Texas Government Code. By a plea to the jurisdiction, the City challenged DPA's standing to sue. The state district court denied the plea, and the City took an interlocutory appeal. The Texas Court of Appeals reversed, holding that the DPA lacked standing to sue the City. Krawczyk amended his petition, adding for the first time a federal question claim alleging that the City had violated the First Amendment of the United States Constitution. The City removed the case to this court based on federal question jurisdiction.
In this memorandum opinion and order, the court recounts the evidence favorably to Krawczyk, as the nonmovant, and draws all reasonable inferences in his favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Krawczyk conceded in a state court pleading the invalidity of his free speech claims under the Texas Constitution, and he reiterated this concession in his response to the City's motion for summary judgment. See P. Br. at 2.
As the case now stands, Krawczyk sues the City to recover on claims for discrimination and retaliation under Tex. Labor Code Ann. §§ 101.001 and 101.301 (Vernon 1996), violation of the right of assembly under the Texas Bill of Rights, Tex. Const. Ann. art. I, § 27 (Vernon 1997), and violation of the United States Constitution First Amendment right to freedom of association, remediable under 42 U.S.C. § 1983. The City counterclaims against DPA and Krawczyk for a declaratory judgment that the provisions of the Texas Labor Code on which Krawczyk relies are inapplicable to public employees.
In his summary judgment response, Krawczyk concedes that he is not suing under the Texas Bill of Rights, Tex. Const. Ann. art. I, § 27 (Vernon 1997), to recover for a violation of his right to petition for redress of grievances. See id.
The City moves for summary judgment, contending, inter alia, that Krawczyk cannot recover under § 1983 on his First Amendment claim. Because the court need only consider this aspect of the City's motion, it will not recount the other grounds on which the City relies.
In its reply brief, the City objects to parts of Krawczyk's summary judgment evidence. Because the court's decision is not affected even if the court assumes the objections have merit, it need not decide the objections and it overrules them as moot.
II A
To recover on his First Amendment freedom of association claim, Krawczyk must demonstrate that he is entitled to relief under § 1983. "Section 1983 provides a private right of action against parties acting `under color of any statute, ordinance, regulation, custom, or usage, of any State' to redress the deprivation of rights secured by the United States Constitution or federal law." Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003) (citing City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)). "Section 1983 is not itself a source of substantive rights; it merely provides a method for vindicating already conferred federal rights." Id. (citing Albright v. Oliver, 510 U.S. 266 (1994)). "To prevail on a section 1983 claim, the plaintiff must show that: 1) the offending conduct was committed by a person acting under color of state law; and 2) the conduct deprived the plaintiff of rights secured by the Constitution or federal law." Id. (citing Parratt v. Taylor, 451 U.S. 527 (1981)).
Because he is suing the City, to establish municipal liability under § 1983, Krawczyk must also satisfy additional requirements:
Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom. Monell and later decisions reject municipal liability predicated on respondeat superior, because the text of section 1983 will not bear such a reading. Consequently, the unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability. The three attribution principles identified here — a policymaker, an official policy and the moving force of the policy — are necessary to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself. Mistakes in analyzing section 1983 municipal liability cases frequently begin with a failure to separate the three attribution principles and to consider each in light of relevant case law.Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citations, footnotes, and internal quotation marks omitted). Although municipalities are "persons" under § 1983, Monell v. Department of Social Services, 436 U.S. 658, 688-89 (1978), they may not be held liable simply on a theory of respondeat superior, id. at 691. Rather, liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury[.]" Id. at 694. "In other words, `the act of the municipality is the act only of an authorized policymaker or of an employee following the policymaker's lead.'" Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (quoting Bryan County Comm'r v. Brown, 520 U.S. 397, 417 (1997) (Souter, J., dissenting)). To avoid summary judgment, Krawczyk must offer evidence that would allow a reasonable trier of fact to find that his injury resulted from the exercise of the City's official policy. See Hinds v. Slagel, 2002 WL 1398557, at *2 (N.D. Tex. May 29, 2002) (Stickney, J.) (citing Monell, 436 U.S. at 694; Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984) (en banc)), rec. adopted, 2002 WL 1398557 (N.D. Tex. June 26, 2002) (Fitzwater, J.).
In determining whether the City's actions amounted to an official policy that would give rise to municipal liability, the court assesses whether the disputed action was:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam), reh'g granted on other grounds, 739 F.2d 993 (1984) (en banc). When someone seeks to establish an official policy on the basis of an informal but "persistent, widespread practice of city officials or employees," he must make a showing both of the existence of the practice and of actual or constructive knowledge on the part of the government body or officials to whom the body has delegated policymaking power. Id. Under this standard, a municipality is liable only if the policy or custom is attributable to a person with policymaking authority. See Monell, 436 U.S. at 694.
B
The City contends that Krawczyk has failed to produce evidence of an official policy or custom of the City that deprived Krawczyk of his constitutional rights. It maintains that Krawczyk cannot demonstrate that the City, through deliberate conduct, was the moving force behind his alleged injury. The City asserts that Krawczyk cannot, as he must, identify the policy, connect the policy to the City, and show that he was injured because of the application of that policy. It also posits that the official policy or custom must be the result of decisions or actions made by final policymaking officials, that, under the Dallas City Charter, all powers are exercised by the City Council unless provided otherwise, and that the court must assume that policymaking authority resides with the City's governing body.
Krawczyk responds that the City is not entitled to summary judgment because (1) the circumstantial evidence shows that, although the grievance process contemplates going to the City Manager and the Civil Service Commission, his grievance did not go beyond the level of the Assistant Chief of Police; (2) then-Chief of Police Terrell Bolton ("Chief Bolton") and Chief Martinez were final official policymakers — Chief Bolton as to the entire Police Department and Chief Martinez as to Internal Affairs — because each made and established policies and practices concerning the overall running of the Police Department, including decisions related to hiring, transferring, and terminating employees, and handling all aspects of financial matters within the Police Department, including allocation of financial resources to particular divisions and departments and determining the overall policy of how the Police Department would allocate personnel to fight crime; and (3) there is sufficient evidence that Chief Martinez engaged in a persistent and widespread practice that was so common and well settled as to constitute a custom that fairly represented municipal policy and as to which a policymaking official had knowledge because, when Chief Martinez made threats concerning someone undermining his authority, he specifically referred to the fact that he had not tolerated this kind of undermining his authority in the past.
C
The court considers first Krawczyk's arguments based on Chief Bolton and Chief Martinez.1
Even if the court assumes arguendo that Chief Bolton was a final policymaker, Krawczyk has not cited summary judgment evidence that Chief Bolton made a decision or undertook action that deprived him of his First Amendment rights, i.e., that Chief Bolton engaged in deliberate conduct that was the moving force behind his transfer to the Northwest Division. This failure is fatal to his attempt to hold the City liable based on Chief Bolton's status as a final policymaker. See Piotrowski, 237 F.3d at 578 (holding that policy or custom must be moving force of violation of constitutional rights).
This court is not required to "comb the record" in search of a genuine issue of material fact. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996). Conclusory assertions, made without any citation to evidence, are insufficient to withstand summary judgment. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). N.D. Tex. Civ. R. 56.5(c) provides that "[a] party whose . . . response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence."
2
Krawczyk has also failed to establish that Chief Martinez was a final policymaker whose conduct is attributable to the City. Whether an official has been delegated final policymaking authority is a question of state law to be determined by the court. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 617 (5th Cir. 1999) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). State law, including valid local ordinances and regulations, "will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." City of St. Louis, 485 U.S. at 125 (footnote omitted). "[T]he delegation of policymaking authority requires more than a showing of mere discretion or decisionmaking authority on the part of the delegee." Bennett, 728 F.2d at 769. Krawczyk must also show that the City "expressly or impliedly acknowledge[s] that [Chief Martinez] acts in lieu of the governing body to set goals and to structure and design the area of the delegated responsibility, subject only to the power of the governing body to control finances and to discharge or curtail the authority of the agent[.]" Id. In determining whether Chief Martinez was a final policymaker, the court must "consider state and local positive law as well as evidence of the City's customs and usages in determining which City officials or bodies had final policymaking authority over the policies at issue in this case." Gros, 181 F.3d at 616. The burden rests on Krawczyk to identify the positive law or evidence of custom demonstrating that Chief Martinez was a policymaker. See Bass v. Parkwood Hosp., 180 F.3d 234, 244 (5th Cir. 1999); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 99 (5th Cir. 1994).
Krawczyk contends that Chief Martinez was a final policymaker as to Internal Affairs. The evidence he cites consists of parts of his deposition testimony and of his responses to the City's interrogatories. See P. Br. at 16 (citing D. App. 98-102, 581-82). In his deposition testimony he describes what occurred during the grievance process, relying on this evidence for the premise that his grievance did not go beyond the level of Assistant Chief. See id. (citing D. App. 98-102). In his interrogatory responses he avers that, as a Deputy Chief, Chief Martinez had significant authority within the Police Department, D. App. 581, and he sets out Chief Bolton's authority as to the entire Police Department and contends that Chief Martinez had similar authority within Internal Affairs, id. at 582. Presumably, he means that Chief Martinez was authorized to make and establish policies and practices concerning running Internal Affairs, including decisions related to transferring employees. Krawczyk has pointed to no positive law or evidence of custom, however, on which the court can conclude that Chief Martinez was a final policymaker. He points to how his grievance was handled and to Chief Bolton's authority as Chief of Police, arguing by inference that Chief Martinez was a final policymaker in the context of Internal Affairs. At most, Krawczyk has perhaps shown that Chief Martinez had discretion or decisionmaking authority over Internal Affairs as an administrator, but he has not shown that he possessed policymaking authority. In particular, he has not demonstrated that a Deputy Chief in the Dallas Police Department has been delegated authority to make policy for the division he superintends. Cf. Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 308 (5th Cir. 2004) ("A municipality's liability under section 1983 requires, among other things, either the unconstitutional action of municipal policymakers or a municipal policy. Hence the only County officials or employees whose conduct is complained of are Mendiola and Courtney, each of whom was only a deputy sheriff and hence was not a policymaker." (citing Turner v. Upton County, Tex., 915 F.2d 133, 136 (5th Cir. 1990)); Gros v. City of Grand Prairie, Tex., 34 Fed. Appx. 150, 2002 WL 4940002, at **4 (5th Cir. Mar. 12, 2002) (per curiam) (unpublished opinion) (affirming this court's conclusion that Chief of Police was not a policymaker where state and local law did not grant formal policymaking authority to him, statements by Chief and others suggesting that he exercised significant control within Police Department demonstrated at most that Chief had decisionmaking authority to run day-to-day operations of Police Department, and record showed that although City Manager delegated certain duties to Police Chief, City Manager maintained responsibility for setting policy for Police Department).
D
The court now turns to Krawczyk's assertion that he has raised a fact issue concerning official City custom by presenting evidence that Chief Martinez engaged in a persistent and widespread practice that was so common and well settled as to constitute a custom that fairly represented municipal policy and as to which a policymaking official had knowledge. Krawczyk maintains that the summary judgment evidence would permit the finding that, when Chief Martinez made threats concerning someone's undermining his authority, he specifically referred to the fact that he had not tolerated this kind of conduct in the past, and that this is proof of a City custom. The court disagrees.If a policy is embodied in custom, a complainant must prove that custom is so "permanent and well settled" as to enjoy the "force of law." See Monell, 436 U.S. at 690-91. A single incident is not enough. See Bennett, 728 F.2d at 768 n. 3 (holding that single instance of unequal enforcement of city building code established no city custom). There must be "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam) (on rehearing)). "[A] plaintiff must demonstrate `[a]ctual or constructive knowledge of such custom . . . attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.'" Id. at 370 (quoting Bennett, 728 F.2d at 762). Evidence that Chief Martinez stated that he had not in the past tolerated someone's undermining his authority is not proof of a City custom because the statement does not quantify how frequently this occurred, and it does not of itself establish that the City or a City policymaker had actual or constructive knowledge of the practice. Krawczyk's evidence of a specific act of retaliation pertains to the single incident in which he was involved. See D. App. 582-83.
Accordingly, the court holds that Krawczyk has not adduced evidence of a persistent and widespread practice that was so common and well settled as to constitute a custom that fairly represented municipal policy.
E
Because Krawczyk has failed to meet the requirements for establishing municipal liability, he is not entitled to recover from the City under § 1983, and the court need not reach any of the other arguments that relate to his First Amendment claim. This cause of action is dismissed with prejudice.
III
Having dismissed the only federal claim in this case, the court now decides whether to remand it to state court. "[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] `general rule' is to decline to exercise jurisdiction over the pendent state law claims." McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003) (en banc). The court concludes for the following reasons that it should remand the remaining claims to state court. First, this case was filed in 2000 in state court and was extensively litigated there (including the taking of an interlocutory appeal) until 2003. Second, the remaining state-law claims should be resolved in the state court system, which is better suited to decide state-law issues such as whether a municipality is subject to chapter 101 of the Texas Labor Code and whether its provisions are preempted by chapter 617 of the Texas Government Code.
* * *
Accordingly, the court grants in part the City's April 8, 2004 motion for summary judgment and dismisses Krawczyk's First Amendment claim with prejudice. The court declines in its discretion to exercise supplemental jurisdiction over Krawczyk's remaining state-law claims and remands those causes of action to the 192nd Judicial District Court of Dallas County, Texas. The clerk of court shall effect the remand according to the usual procedure.SO ORDERED.